United States District Court, E.D. Arkansas, Pine Bluff Division
FINDINGS AND RECOMMENDATION
H. DAVID YOUNG, Magistrate Judge.
The following findings and recommendation have been sent to United States District Judge Billy Roy Wilson. Any party may serve and file written objections to these findings and recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the Office of the United States District Court Clerk no later than fourteen (14) days from the date of the findings and recommendation. The copy will be furnished to the opposing party. Failure to file timely objections may result in a waiver of the right to appeal questions of fact.
If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the District Judge, you must, at the same time that you file your written objections, include the following:
1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence proffered at the hearing before the District Judge (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The details of any testimony desired to be introduced at the hearing before the District Judge in the form of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the hearing before the District Judge.
From this submission, the District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.
Mail your objections and "Statement of Necessity" to:
In July of 2009, petitioner James Edward Smith ("Smith") entered a negotiated plea of guilty in an Arkansas state trial court to three criminal offenses, one of which was first-degree battery. He was sentenced as an habitual offender to an aggregate term of ten years in prison. In February of 2010, an official with the Arkansas Department of Correction ("ADC") notified Smith that his sentence was being administered pursuant to Act 1805 of 2001, codified at Ark. Code Ann. XX-XX-XXX(b). In July of 2010, Smith challenged the application of Ark. Code Ann. XX-XX-XXX(b) to his sentence in a complaint pursuant to 42 U.S.C. 1983. See Smith v. May, 5:10-cv-00199 JTK, Pleading 2 at 4. He later withdrew the complaint, and the case was dismissed in December of 2012.
In September of 2012, Smith filed a petition for declaratory judgment and writ of mandamus in an Arkansas state trial court challenging, in part, the application of Ark. Code Ann. XX-XX-XXX(b) to his 2009 sentence. He maintained that "the application of the statute to his sentence amounted to an enhancement of the sentence." See Pleading 8, Exhibit B-3 at 1. The state trial court judge denied the petition, and Smith appealed. The Arkansas Supreme Court affirmed the denial of the petition in June of 2014 and issued a mandate in July of 2014. In affirming, the state Supreme Court noted the following: "... XX-XX-XXX is not a sentencing statute, and it is not an enhancement statute; it merely sets out certain provisions for parole eligibility. Pursuant to Arkansas Code Annotated section 5-4-402(a)..., parole eligibility is within the domain of the executive branch, specifically the ADC." See Pleading 8, Exhibit B-3 at 2.
In January of 2015, Smith commenced the case at bar by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. In the petition, he challenged the application of Ark. Code Ann. XX-XX-XXX(b) to his 2009 sentence. He maintained that the application of the statute to his sentence violated his constitutional rights.
Respondent Wendy Kelley ("Kelley") filed a response to the petition and asked that it be dismissed. She so maintained for two reasons. She first maintained that the petition is time barred because the 2009 conviction became final in July of 2009, and nothing tolled the subsequent one year period for filing a petition pursuant to 28 U.S.C. 2254. Second, she maintained that Smith's claim is "not ...